The application of the rights and principles of the Charter of Fundamental Rights

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RSC 2021/34

Robert Schuman Centre for Advanced Studies

Centre for Judicial Cooperation

The application of the rights and principles of the

Charter of Fundamental Rights

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European University Institute

Robert Schuman Centre for Advanced Studies

Centre for Judicial Cooperation

The application of the rights and principles of the Charter of

Fundamental Rights

Nina Półtorak

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Robert Schuman Centre for Advanced Studies

The Robert Schuman Centre for Advanced Studies, created in 1992 and currently directed by Professor Brigid Laffan, aims to develop inter-disciplinary and comparative research on the major issues facing the process of European integration, European societies and Europe’s place in 21st_{century global politics.}

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Contacts: Centre for Judicial Cooperation, Villa Raimondi, via Boccaccio 121, IT-50133 Florence Editor of the CJC Working Papers: Research Fellow Dr. Madalina Moraru, madalina.moraru@eui.eu Telephone: [+39] 055 4685761

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Abstract

The Charter of Fundamental Rights codifies and reaffirms the rights and principles recognised in European Union law. These rights and principles result from the constitutional traditions common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the case law of the Court of Justice of the European Union and that of the European Court of Human Rights. The Charter was meant to strengthen the protection of fundamental rights and principles by making them more visible. This study explores the restrictions on the applicability of the rights and principles enshrined in the Charter. Given that the most problematic questions are those regarding the application of the Charter’s rights and principles by the Member States, it focuses on these questions and points out, when necessary, some other problems such as the distinction between rights and principles and their application in horizontal relations. The study also analyses the different modes and constraints of application of the Charter and interpretation of it by Member State courts. Finally, it examines whether the Charter, despite its limited scope of application, can provide national courts with new competences to apply the fundamental rights.

Keywords

Charter of Fundamental Rights, judicial interactions, rights and principles, scope of application of the Charter, notion of implementation of EU law, competences of national courts, national constitutional standards, relations between EU and national law

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1

This study explores the limitations of the application of the rights and principles enshrined in the Charter of Fundamental Rights of the EU (hereafter CFR or Charter). It is impossible to discuss here all the issues related to the application of the Charter. Given that, viewed from the perspective of judicial interactions, the most problematic questions are those regarding the application of the Charter by the Member States, the study will focus on these questions and will point out, when necessary, some other problems such as the distinction between rights and principles and their application in horizontal relations. Application of the Charter by courts of the Member States requires interpretation of the field of application of the Charter to the Member States (Article 51(1) CRF). This is a necessary first step but, of course, not the last one. Therefore, this study tries to define the scope of the obligation on the Member States to respect and apply the Charter but also to analyse the consequences of this obligation for national courts. Hence, it presents, first, the problems in the binding force of the Charter for the Member States (points II-IV) and next, the problems of its application by national courts in relation to their constitutional powers (point V). Finally, it suggests that the question of the scope of application of the Charter (regulated by Article 51(1)) should be distinguished from the question of its actual application in place of national constitutional rights and freedoms (point VI). It argues that the latter question should be answered on the basis of Article 53 CFR and its interpretation by the Court of Justice of the European Union (CJEU). Article 51(1) CFR allows a broad scope of applicability of the Charter which should not depend on the special needs of EU law to apply the Charter. Such needs may be, however, used as criteria justifying intervention by the Charter in lieu of national fundamental rights. In other cases, the Charter may operate in parallel with national fundamental rights – it may be put on standby and only step in when a national law does not guarantee an adequate level of protection or when the implementation of EU law is put in jeopardy.

I. Preliminary remarks

*

The Charter is about people and their rights. As is stated in its preamble, the EU places the individual at the heart of its activities and contributes to the preservation and development of common values. By strengthening the protection of fundamental rights, the Charter serves these aims. Therefore, the ultimate objective of the Charter is to put people and their rights at the centre of the integration process.1_This

aim should determine the rules of interpretation and application of the Charter in EU law and that of the Member States. However, while the Charter was adopted to strengthen the protection of fundamental rights of individuals in the EU, it just codifies and reaffirms the rights and principles already recognised in European Union law and makes them more visible. Moreover, the Charter does not change any EU power or extend the scope of application of European law (Article 6(1) TEU, Article 51(2) CFR).2_As

to the Member States, the Charter might have been seen as a superfluous legal act. All Member States have already been bound by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and have had their well-established fundamental rights from which the EU fundamental rights have been derived. No need to remind that rule of law and respect for human rights are the founding values of the EU common to the Member States (Article 2 TEU). Sharing these

* _{All the views and opinions of the author are strictly personal.}

This study constitutes an extended version of the article that is going to be published in the book Federica Casarosa and Madalina Moraru (eds) The Practice of Judicial Interaction in the Field of Fundamental Rights – The Added Value of the

Charter of Fundamental Rights of the EU.

1 _{This correlates with the policies of the EU as expressed by the European Parliament: “It is only by placing the well-being}

of the people and the respect of their rights at the centre of the EU’s policies and decisions, that we will manage to counteract Euroscepticism”. Explanatory statement to the Report on the situation of fundamental rights in the European Union in 2017 of 13.12.2018 (2018/2103(INI).

2 _{For more, see, e.g., Koen Lenaerts, ‘Respect for fundamental rights as a constitutional principle of EU’ Columbia Journal}

of European Law 1(2000); Piet Eeckhout, ‘The EU Charter of Fundamental Rights and the federal question’ 39 CMLRev

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2 Robert Schuman Centre for Advanced Studies Working Papers

values is a condition of the EU membership and the Member States may be sanctioned for not keeping this commitment (Article 7 TEU). Thus, the legal and practical constraints on the Charter might have provoked questions as to its practical effectiveness. Nevertheless, more than 10 years after its entry into force as a binding legal act the Charter has proved to be a milestone in the development of the legal systems of the EU and its Member States. It has become an important part of EU and national jurisprudence – not only does the CJEU invoke its provisions and use them as a legal basis for its decisions but the same is true of national courts. This process has not been easy and hassle-free from the point of view of the constitutional identity of the Member States. It has not been possible to avoid interactions between the national constitutional orders and the Charter. These interactions may be positive in the sense of the cross-fertilisation or cross influence, resulting in establishing the common standard of protection of the fundamental rights. However, these interactions may sometimes lead to competition between the national constitutional law and the Charter.

As part of EU law with the same legal value as the Treaties, the Charter acquires the same quality, meaning that the fundamental rights enshrined in it can have direct effect and primacy over national law. In consequence, national courts not only examine the compliance of national law with EU law but also its compliance with the fundamental rights recognised in the EU system. Applying the Charter, the national judge not only adjudicates a concrete case but also faces the problems of the complicated relations between the Charter and constitutional fundamental rights; the problem of the competences of the ordinary judge versus the competences of the constitutional judge; and the issue of the division of competences between constitutional courts and the CJEU in the field of fundamental rights. These are all valid and complex problems underlining the challenging aspect of the Charter for national legal systems and national judges. However, they should not overshadow the importance and usefulness of the Charter in helping national courts to protect European and national constitutional values. The Charter, which was initially seen as a legal instrument serving the EU and making the EU fundamental rights more visible, now more than ever can protect and support the constitutional values of the Member States.

II. Rights and principles in the Charter

It will be useful to first explain the character of the provisions in the Charter and particularly the distinction between rights and principles. As will be clarified later, this distinction is not relevant to the problem of the applicability of the Charter to the Member States as defined in Article 51(1) CFR but it introduces the main modality for judicial authorities to apply the provisions of the Charter and must always be taken into account when analysing the problem of application of the Charter.

The terminology used in the Charter to describe its content is not quite coherent. First, the preamble states that the European Union recognises the rights, freedoms and principles set out in the Charter. Then Article 51(1) provides that the EU and the Member States should respect the rights and observe the principles. Finally, Article 52(5) provides for the distinction between the rights and principles of the Charter. This distinction is introduced to find a compromise as to the justiciability of economic and social rights and is well known in national constitutional systems (yet under different names and not always as exactly the same legal concept – e.g. subjective rights, programmatic norms, constitutional principles).3_{The principles referred to in Article 52(5) CFR should not be confused with general}

principles of EU law. This last concept is developed in the case law of the CJEU and is not limited to fundamental rights (or principles) and does not impose any constraints as to the justiciability of these general principles. Therefore, the terminology used in the case law of the CJEU, particularly from the time before the entry into force of the Charter should not be relevant to interpretation of Article 52(5)

3 _{See, e.g., Steven Peers, Sacha Prechal ‘Article 52 – scope and Interpretation of Rights and Principles’ in Steven Peers,}

Tamara Hervey, Jeff Kenner, Angela Ward (eds) The EU Charter of Fundamental Rights. A commentary, (Hart Publishing 2014), p 1505.

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The application of the rights and principles of the Charter of Fundamental Rights

European University Institute 3

CFR. Also in the present work, the terminology used in its further parts does not refer to the distinction made in Article 52(5) CFR.

From the point of view of entities applying the Charter, whether they are EU or national institutions and courts, the distinction between rights and principles directly provided in Article 52(5) will influence the way the Charter is applied. As they are part of the primary law of the EU, both rights and principles in the Charter have the qualities of direct effect and primacy over national law. However, their functioning in national and EU law is different. As is provided for in Article 52(5) CFR, the provisions of the Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union and by acts of Member States when they are implementing Union law in the exercise of their powers. They are only judicially cognisable in the interpretation of such acts and in the ruling on their legality. The effects of the principles are therefore limited in comparison to the rights. The rights contained in the Charter may be fully judicially operational – they can be invoked and enforced before courts and be a direct legal basis for judicial decisions, while the principles should be implemented by legislative or executive acts and their judicial operationality is limited to the interpretation and legality of such acts. Therefore, the principles may not be a direct and autonomous basis for judicial decisions but need to be implemented by further acts and are used for the purpose of deciding on the interpretation or validity of these acts.

It is not always easy to classify a given provision in the Charter as a right or a principle. Of course, the title of a given provision in the Charter is not decisive in this respect. Moreover, the same provision may contain both rights and principles.4_{There are still not many directions in the case law of the CJEU}

about the distinction between rights and principles. The CJEU has already confirmed that Article 21 CFR prohibiting discrimination on the basis of the grounds established therein, Article 47 CFR establishing the right to effective judicial protection and Article 31(2) grating the right to paid annual leave are sufficient in themselves and do not need to be made more specific by provisions in EU or national law to confer on individuals these rights.5_{Therefore, we may state that these provisions contain}

rights and not principles in the meaning of article 52(5) CFR.

The application of both rights and principles of the Charter often requires courts to balance the interests which they represent and to find the right equilibrium between them using the proportionality rule and taking into account indications that may be derived from legal acts of the EU where such balancing might have already been done. The CJEU has confirmed that such balancing of rights has no effect on the possibility of relying on the rights in question before a court.6

III. Question of interpretation of Article 51(1) of the Charter

Before the Charter entered into force, the fundamental rights were already recognised in the Treaties and the case law of the CJEU. There was no doubt that they apply to the EC (and later EU). As to their application towards the Member States, there have been two basic groups of case-law of the CJEU on application of the fundamental rights – the Wachauf line and the ERT line. The first group – with the name taken from the judgment in the Wachauf case of 19897_{– comprises situations where Member}

States “act as agents” of the EU, i.e. when they implement EU law even using their discretionary power.

4

As the explanations of the Charter say, examples of principles include Articles 25 (rights of the elderly), 26 (rights of persons with disabilities) and 37 (environmental protection) and provisions which contain both elements of a right and of a principle, e.g. Articles 23 (equality between women and men), 33 (right to family and professional life) and 34 (social security and social assistance).

5

Cases C-414/16 Vera Egenberger ECLI:EU:C:2018:257, par 78; C-243/19, A v Veselības ministrija, ECLI:EU:C:2020:872, par 36, C-569/16 and C-570/16 Stadt Wuppertal v Maria Elisabeth Bauer ECLI:EU:C:2018:871, par 87.

6

C-414/16 Vera Egenberger ECLI:EU:C:2018:257, par 80.

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In these situations Member States act as the executive power of the EU.8_{The second group is the line}

originating from the ERT judgment of 1991, in which CJEU held that Member States must observe fundamental rights also when they act within the exceptions from market freedoms authorised by the EU (situations of derogation).9

Some approaches distinguished one more group, encompassing situations other than implementation or derogation, yet falling within the scope of EU law. These are situations where there exists some other link to EU law which is different from direct implementation or derogations.10_{In other words, these are}

situations which – for some other reason – as it was put in Seda Kücükdeveci judgment “fall within the scope of European Union law”.11_{In this case such link was the directive regulating the situation in}

question, which had not been implemented by the Member State despite the expiry of the time limit for its implementation and which could not have been applied directly in the horizontal situations.12

However, the question of the Member States being bound to observe EU fundamental rights was addressed relatively rarely in the CJEU jurisprudence prior to the Treaty of Lisbon. The situation changed with the Treaty of Lisbon granting the Charter the status equal to the Treaties (Article 6(1) TEU). Article 51(1) CFR stating that the provisions of the Charter are addressed to the Member States “only when they are implementing Union law” stirred controversies and disputes from the very beginning.13_{Various suggestions as to the interpretation of Article 51(1) CFR attempting to dispel the}

doubts have been formulated in opinions of Advocates General as well as in the doctrine.14_{One of the}

first was that of Advocate General E. Sharpston in her opinion in Zambrano case. She held that the fundamental rights of the EU should always find application wherever the EU has a competence regardless of whether it has been exercised, because granting a competence by the Member States to the EU entails transferring the responsibility for the protection of fundamental rights.15

Advocate General Cruz Villalon presented a different suggestion in his opinion in the Åkerberg Fransson case. In his view, it should fall for the CJEU to decide whether there exists a specific interest of the EU in taking over protection of fundamental rights, i.e. whether the link between the case and EU

8

See Joseph H.H Weiler, Nicolas J.S. Lockhart ‘’Taking rights seriously’ seriously: The European Court and its fundamental rights jurisprudence – part I‘ 32 CMLRev (1995) 51–94.

9

Cases C-260/89 ERT ECLI:EU:C:1991:254; C-368/95 Familiapress ECLI:EU:C:1997:325.

10

See opinion of Advocate General E. Sharpston of 22 May 2008 in case C-427/06 Birgit Bartsch, par 69. See also Xavier Groussot, Laurent Pech, Gunnar T. Petursson, ‘The Scope of Application of EU Fundamental Rights on Member States’ Action: In Search of Certainty in EU Adjudication‘ Eric Stein Working Paper 1 (2011).

11

Case C-555/07 Seda Kücükdeveci ECLI:EU:C:2010:21, par 23.

12

Ibidem, par 25.

13

The matters were made even worse by the inconsistency of terms used in different language versions, e.g. English:

implementing, French : mettent en œuvre, German: Durchführung, Spanish: apliquen which could be translated as

enforcement, enactment, application or implementation of EU law. Additionally, these terms could be understood differently in the given legal systems.

14

See e.g. Allard Knook, ‘The Court, The Charter, And The Vertical Division Of Powers In The European Union‘ 42 CMLRev (2005), 367-398; Koen Lenaerts ‘The Court of Justice of the European Union and the Protection of Fundamental Rights’ Polish Yearbook of International Law 31 (2011), p 79-106; Koen Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights‘ European Constitutional Law Review, 3 (2012) p 375-403; Marek Safjan ‘Areas of Application of the Charter of Fundamental Rights of the European Union: Fields Of Conflict?’ EUI Working Papers LAW 22 (2012); Alan Rosas, ‘When is the EU Charter of Fundamental Rights applicable at national level?’ Jurisprudence 19(4) (2012) p 1269– 1288; Bas van Bockel, Peter Wattel, ‘New Wine into Old Wineskins: The Scope of the Charter of Fundamental Rights of the EU after Åkerberg Fransson‘ European Law Review 6 (2013) p 866; Koen Lenaerts, ‘Trybunał Sprawiedliwości Unii Europejskiej a ochrona praw podstawowych‘ Europejski Przegląd Sądowy 1(2013) p 4: See also Nina Półtorak ‘Zakres związania państw członkowskich Kartą Praw Podstawowych UE’ Europejski Przegląd Sądowy 9(2014) p. 17-28, where several theses developed in this article have been formulated.

15

Opinion of Advocate General Sharpston in case C-34/09 Gerardo Ruiz Zambrano ECLI:EU:C:2010:560, par 163. It states also that the AG did not believe her proposal is very likely to be adopted at the present stage of EU law development without the intervention of the EU legislator, par 171-177.

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law is sufficiently strong and not merely marginal.16_{He suggested introducing an additional criterion}

that “the presence of EU law in a given situation” should be “sufficiently strong”. Only then will the EU acquire a specific interest in the assumption of responsibility for guaranteeing fundamental rights by the Member States.

Another contribution was the suggestion so-called reverse Solange, formulated in 2012.17_The

authors suggested that the application of the Charter should go beyond the scope of EU law when a Member State systematically and seriously infringes the essence of fundamental rights. The competence of the EU to intervene under the Charter would stem from the essence of the EU citizenship, since the citizens are entitled to have their fundamental rights protected in every aspect. The suggestion was dubbed reverse Solange, which could be understood to mean that as long as the Member States observe the essence of fundamental rights, they remain free to apply their own fundamental rights. If, however, they seriously infringe these rights, Charter comes into play, even in situations falling outside the scope of Union law.

None of the suggestions presented above was approved in the case-law of the CJEU. For two of them the reason might have been that they advocated for extending the scope of application of fundamental rights beyond EU law, thus for the federalization effect of the Charter which was one of the obstacles to giving the Charter a binding force.18_{Such interpretation would be also disputable in the light of the}

current guarantees provided for in the Treaties and the Charter itself, whose aim was to counteract the expansion of EU competences (Article 6(1) point 2 TEU; Article 51(2) CFR).

The Court formulated the first systemic interpretation of Article 51(1) CFR in its judgment of 2013 in the Åkerberg Fransson case.19_{The question asked by a Swedish court in this case was about the}

interpretation of the ne bis in idem principle regarding the admissibility of imposing both a criminal and administrative penalty for the infringement of tax provisions. The main problem occurring in this case was about the possibility of applying the Charter to the actions of the Member States which were not aimed directly at fulfilling obligations imposed by the EU. In its judgement, the CJEU holds that Article 51(1) CFR means that the Member States are bound by the Charter when they act within the scope of EU law application, so when national provisions fall within the scope of EU law. The CJEU adds that there cannot exist situations which are covered by EU law without the Charter being applicable.20

This judgment has been widely commented on in legal works21_{and national case law.}22_{It explains}

the interpretation of Article 51(1) CFR but it does not give a ready-to-use pattern suitable for every case. After the Åkerberg Fransson judgment it is clear that “the Charter does not grant ‘free-standing’ fundamental rights – that is, rights that have no point of attachment to what lies within the competence

16

Opinion of Advocate General Cruz Villalon in case C-617/10 Åkerberg Fransson ECLI:EU:C:2012:340, par 27.

17

Armin von Bogdandy, Matthias Kottmann, Carlino Antpöhler, Johanna Dickschen, Simon Hentrei, Maja Smrkolj ‘Reverse Solange: Protecting the essence of fundamental rights against EU Member States‘ 49 CMLRev (2012), 489-520.

18

The federalizing effect would be that the CFR could be applied regardless of whether the matter falls within the competence of the EU, and therefore also outside the scope of EU law. See more Koen Lenaerts, supra note 2, p. 23-24; Piet Eeckhout,

supra note 2; Groussot, Pech, Petursson, supra note 10, p 16.

19

Case C-617/10 Åkerberg Fransson ECLI:EU:C:2013:105.

20

Case C-617/10 Åkerberg Fransson, par 21.

21

See, e.g. Daniel Sarmiento, ‘Who's afraid of the Charter? The Court of Justice, national courts and the new framework of fundamental rights protection in Europe‘ 50 CMLRev (2013), 1267–1304; Michael Dougan ‘Judicial review of Member State action under the general principles and the Charter: Defining the ‘scope of Union law’ 52 CMLRev (2015), 1201– 1245.

22

In its judgment of 24 April 2013 the German Bundesverfassungsgericht held that the Åkerberg Fransson judgment must be interpreted as referring to the specific case of VAT regulations, since if it were to have a larger scope it would have to be regarded as issued ultra vires and thus infringing the constitutional identity of the Member States, Decision of 24 April 2013, 1 BvR 1215/07. http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg13-031en.html. This decision was also invoked by the UK Supreme Court, [2014] UKSC 3 of 22 January 2014.

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of the Union.”23_{What comes from Åkerberg Fransson and has been confirmed by further case law is}

that citizenship of the EU may not be regarded in itself as justifying application of the Charter towards individuals. In other words, there must be some EU provision concretising the rights stemming from citizenship for a case to be considered to fall within the scope of the Charter.24_{Neither is EU citizenship}

in itself a link sufficient to justify application of the Charter and nor does the Charter extend the rights granted to EU citizens. The question remains, however, of what this point of attachment (link) enabling a national court to conclude that a given case falls within the scope of application of the Charter could be.

IV. The field of application of the Charter to the Member States (an attempt at

systematisation)

On the basis of the case law of the CJEU it is possible to list a few groups of situations which fall under the terms of implementation of EU law as provided for in Article 51(1) CFR.25

1. Direct implementation of EU law

First is the situation when Member States directly implement EU law, which may be called acting ‘as agents’ or as the executive power of the EU.26_{It is reflected in the first criterion usually checked by the}

CJEU when deciding on the applicability of the Charter, which is whether the national legislation in question aims to implement provisions of EU law.27_{This happens in cases such as those governed by}

directly effective EU legislation (most of all by the Treaties or regulations28_{) or governed by national}

provisions directly implementing EU law (mainly directives).29_{In most of these cases, the principles of}

primacy and direct effect of EU law come into play, which might be a simple indication for the national court that the Charter is also applicable.

The question of the applicability of the Charter does not depend on whether a Member State uses its discretionary power when implementing EU law (however, this criterion may be of importance when the CFR overlaps with a constitutional standard what will be analysed further on). Such a conclusion may already be drawn from the ERT case and has been confirmed in later case law.30

23

As Advocate General Sharpston has put it in her opinion in case C-456/12 O. v Minister voor Immigratie ECLI:EU:C:2013:837, par 60.

24

Contrary to what was proposed in revers Solange, Von Bogdandy and others supra note 17.

25

There might be many possible systematisations, e.g. Advocate General Bobek lists three groups: direct application, indirect application and derogations, opinion in C-298/16 Ispas, ECLI:EU:C:2017:650, par 32. See also e.g. N. Lazzerini,

ACTIONES Handbook on the Techniques of Judicial Interactions in the Application of the EU Charter, Module 1 – The EU Charter of Fundamental Rights: Scope of Application, Relationship with The ECHR and National Standards, Effects,

https://cjc.eui.eu/wp-content/uploads/2019/03/D1.1.a-Module-1.pdf

26

Cases 5/88 Wachauf ECLI:EU:C:1989:321; C-2/92 Bostock ECLI:EU:C:1994:116. For more, see Weiler, Lockhart supra note 8.

27

E.g. case C-265/13 Emiliano Torralbo Marcos ECLI:EU:C:2014:18, par 30.

28

E.g. case C-559/14 Meroni ECLI:EU:C:2016:349, par 44.

29

E.g. case C-528/13 Geoffrey Léger ECLI:EU:C:2015:288, pars 46-47 and C-418/11 Texdata Software GmbH ECLI:EU:C:2013:588.

30

Cases C-260/89 ERT ECLI:EU:C:1991:254; C-411/10 and C-493/10 N.S. ECLI:EU:C:2011:865, par 68; C-276/12 Jiří

Sabou ECLI:EU:C:2013:678 par 25-26; C-329/13 Ferdinand Stefan ECLI:EU:C:2014:815, par 34; C-258/14 Eugenia Florescu and others ECLI:EU:C:2017:448, par 48. See also the opinion of Advocate General Mengozzi in C-638/16 PPU X and X v État belge ECLI:EU:C:2017:93, par 81-83.

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2. Indirect implementation of EU law

A second group covers situations when the case is governed by national provisions which are not aimed at the implementation of EU law but which affect EU law (we may call this situation an indirect implementation of EU law).31_{That was the situation in the Åkerberg Fransson case where EU law}

provided only general and not specified obligations of the Member States and the national provisions on the sanctions were not directed at implementation of EU law but they were used also in cases concerning EU tax rules. That was also the case in Berlioz judgment where a national provision regulating sanctions for refusing information and not aimed to transpose a directive was treated as implementation of EU law since the application of that national provision was “intended to ensure that of the directive.”32_{In the Delvigne case, the CJEU decided that the Member State must be considered}

to have been implementing EU law when adopting general provisions on the right to vote if it influenced the right to vote in elections to the European Parliament.33_{In these cases the general obligations of the}

Member States stemming from EU law could be affected by the application of the national provisions in question.

However, the mere fact that a national measure comes within an area of the competences of the EU is not enough to bring the case within the scope of EU law.34_{EU competence should be executed, so}

there should be EU rules (not necessarily a legislative act, but a rule coming from EU legal acts or from the case law of the CJEU) which imply an obligation on the Member State and within which the national measure falls. Moreover, indirect interference between national and EU law is not always sufficient as the concept of implementation of EU law requires “a certain degree of connection above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other.”35_{This degree of connection should be determined on a case by case basis using the criteria}

formulated by the CJEU such as: whether the given national legislation is intended to implement a provision of EU law; the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; and whether there are specific rules in EU law on the matter or capable of affecting it.36_{It seems, therefore, that if the national law is}

not intended to implement EU law and it serves objectives other than that of EU law, in order to qualify that national law as being in the scope of the Charter there must be a particular EU rule imposing an obligation on the Member State and in consequence concerning or affecting the issue regulated by the national law (such as the VAT directive and Article 325 TFEU in the Åkerberg Fransson case).

This indirect implementation group also comprises procedural measures adopted by the Member States within their procedural autonomy but which may affect the effective enforcement of EU law. In the DEB case, Article 47 CFR was applied to verify national provisions concerning legal aid in compensation claims, although EU law does not regulate the question of legal aid in such claims.37

Similarly, in the Stojanow case the CJEU held that the question of jurisdiction of courts which adjudicate on agricultural subsidy issues falls under the Charter.38

31

Case C-40/11 Y. Iida ECLI:EU:C:2012:691, par 79. See also C-206/13 Cruciano Siragusa ECLI:EU:C:2014:126, par 25.

32

Case C-682/15 Berlioz Investment Fund ECLI:EU:C:2017:373, par 40.

33

Case C-650/13 Delvigne EU:C:2015:648, par 24-34. According to EU law, the electoral procedure is to be governed in each Member State by its national provisions. However, when exercising that competence, the Member States are bound by EU law in order to ensure that the members of the European Parliament are elected by direct universal suffrage in a free and secret ballot.

34

E.g. case C-198/13 Víctor Manuel Julian Hernández ECLI:EU:C:2014:2055, par 36.

35

Case C-206/13 Cruciano Siragusa, par 24.

36

Ibidem, par 25.

37

Case C-279/09 DEB ECLI:EU:C:2010:811; See also C-199/11 Otis ECLI:EU:C:2012:684, par 45.

38

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The indirect implementation of EU law category also includes cases where EU legislation exists but cannot be directly applicable at the national level because of the constraints of the doctrine of the direct effect of EU law especially in relation to the directives. That can be illustrated by the judgments concerning the applicability of the EU fundamental rights as recognised before the Charter - Mangold39

and Seda Kücükdeveci40_{cases in which, although the EU directive couldn’t have been directly effective}

due to the nature of the litigation (between private parties and in Mangold case - due to non-expiration of the period for transposing the directive), the CJEU examined whether the national provisions – falling within the scope of provisions of the directive – were compliant with fundamental rights. Similarly, in Navarro case, the CJEU held that the provisions of the directive on a guarantee fund were not directly effective because the case concerned the time before the expiry of deadline for implementation of the directive, but once the directive entered into force, national provisions on guarantee funds felt within the scope of EU law and therefore had to be compliant with fundamental rights.41_{It can be inferred from}

the case law of the CJEU that fundamental rights (at least non-discrimination) can be relied on in cases in which a directive itself might not be applied. It is because the sheer existence of a directive regulating the same matters as the relevant national legislation is a link with EU law, which triggers the application of the fundamental rights.42_{However, the subsequent case law explains that what should be actually}

taken into account in such situations is the existence of national provisions regulating the same issues as the directive and which might undermine the effectiveness of the directive after the transposition deadline. 43

That leads us to the problem of the applicability of the Charter in horizontal situations. The CJEU has stated that the Charter may be applicable in relations between private parties.44_{This does not mean,}

however, that the Charter may be always invoked in a horizontal relation in order to disapply a national provision. Here, the CJEU has indicated that it depends on the character of the provision of the Charter. If the provision in the Charter is sufficient in itself to confer on individuals a right which they may rely on as such, it may be invoked in horizontal relations in order to disapply national provisions.45_{If the}

Charter provision does not suffice to confer on individuals a right and it needs more specific expression in EU directive, it cannot be invoked in a dispute between individuals in order to disapply the national provision. These statements are probably based on the premise that in the case of the Charter provisions which need to be implemented with a directive, it is in fact the directive which would be applied in horizontal relations, and this is not permitted by EU law. In the case of a Charter provision being a directly applicable general principle of EU law (e.g. the non-discrimination principle), it is this provision that is applied in a horizontal relation, so there is no back door for the horizontal effect of directives.

39

Case C-144/04 Werner Mangold ECLI:EU:C:2005:709, par 78.

40

Case C-555/07 Seda Kücükdeveci.

41

Case C-246/06 Josefa Velasco Navarro ECLI:EU:C:2008:19, par 32.

42

Case C-555/07 Seda Kücükdeveci, case C-144/04 Werner Mangold ECLI:EU:C:2005:709, par 78, case C-246/06 Josefa

Velasco Navarro ECLI:EU:C:2008:19, par 32.

43

Case C-427/06 Birgit Bartsch ECLI:EU:C:2008:517, par 24. See also case C-147/08 Jürgen Römer ECLI:EU:C:2011:286, par 61-64. See the opinion of Advocate General E. Sharpston of 22 May 2008 in case C-427/06 Birgit Bartsch, par 69. See Groussot, Pech, Petursson, supra note 10.

44

Case C-414/16 Vera Egenberger ECLI:EU:C:2018:257, par 82. On the horizontal effect of the Charter, see, e.g., Marek Safjan ‘The Horizontal Effect of Fundamental Rights in Private Law-On Actors, Vectors, and Factors of Influence’ in Kai Purnhagen, Peter Rott (eds) Varieties of European Economic Law and Regulation. Studies in European Economic Law and

Regulation, vol 3. Springer; Eleni Frantziou ‘Mangold Recast? The CJEU’s Flirtation with Drittwirkung in Egenberger‘ European Law Blog, 24 April 2018; Eleni Frantziou ‘Joined cases C-569/16 and C-570/16 Bauer et al: (Most of) the Charter

of Fundamental Rights is Horizontally Applicable‘ European Law Blog, 19 November 2018, www.europeanlawblog.eu; Aurelia Colombi Ciacchi, ‘The Direct Horizontal Effect of EU Fundamental Rights, CJEU 17 April 2018, Case C-414/16,

Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V and CJEU 11 September 2018, Case C-68/17,

IR v JQ‘ European Constitutional Law Review, 15: 294–305, 2019.

45

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As to the problem of the relation between Article 51(1) CFR and the horizontal direct effect of the Charter, it should be stated that the provision in question does not address the question of whether individuals might be directly bound by the Charter and it cannot be interpreted as systematically precluding such a possibility. If the Charter provision is sufficient in itself to confer rights on individuals, meaning that it is both mandatory and unconditional in nature, it may be relied on in disputes between individuals in a field covered by EU law and therefore falling within the scope of the Charter.46_This

means that Article 51(1) CFR does not govern the question of the application of the Charter in disputes between individuals and that this question should instead be answered on the basis of the established case law of the CJEU on the horizontal effect of primary EU law.47_{Thus, the Charters provisions may}

be horizontally applicable in the fields covered by EU law and therefore falling within the scope of the Charter, which is a criterion different from implementation of EU law used in Article 51(1) CFR.

From this reasoning, it also results that the distinction between rights and principles introduced in Article 52(5) of the Charter, which may be of relevance to the question of the horizontal application of the Charter, should not be relevant for the analysis of the scope of application of the Charter as defined in Article 51(1). Not only is the question of the horizontal application of the Charter distinct from the question of its scope of application towards Member States but also the character of the Charter’s provisions (i.e. being a right or principle) should not be a factor taken into account when analysing the problem of the applicability of the Charter to the Member States. However, even when the case before a national judge falls under the implementation of EU law and therefore Charter is applicable, Article 52(5) CFR may still limit the actual application of the Charter’s principle. This shows the complexity of the process of application of the Charter by a national judge, as well as how many different but

overlapping questions it provokes.

The next subcategory in this indirect implementation of EU law group concerns national measures which limit the freedoms of the internal market (situations of derogation).48_{In its judgment in the Pfleger}

case, the CJEU answered the question of whether the Charter should apply when a Member State introduces regulations providing criminal penalties for organising games of chance without a licence.49

It applied the ERT line of case law and concluded that where a Member State relies on public interest requirements in order to justify national restrictions on the freedoms of the internal market it must be subject to examination in the light of the rights guaranteed by the Charter. In consequence, “(t)he use by a Member State of exceptions provided for by EU law in order to justify an obstruction of a fundamental freedom guaranteed by the Treaty must, therefore, be regarded (…) as ‘implementing Union law’ within the meaning of Article 51(1) of the Charter.”50_{It should be added, that in situations}

of derogation, the question is often whether a given national law falls within the category of rules limiting the freedoms of the internal market.51_{Thus, the question of the applicability of the Charter in}

situations of derogation has been answered by the CJEU on the basis of the ERT case law but the underlying analysis concerned the scope of EU law itself (i.e. whether the EU law covers the national derogating regulations).

46

Such arguments have been used by the CJEU in order to declare the right to paid annual leave as expressed in Article 31(2) CFR to be horizontally effective, case C-569/16 and C-570/16 Stadt Wuppertal v Maria Elisabeth Bauer ECLI:EU:C:2018:871, par 87, 79-92.

47

See ibidem, par 88.

48

Cases C-260/89 ERT ECLI:EU:C:1991:254; C-368/95 Familiapress ECLI:EU:C:1997:325.

49

Case C-390/12 Robert Pfleger ECLI:EU:C:2014:281. See also cases C-201/15 AGET Iraklis EU:C:2016:972, pars 63 -64; C-235/17 European Commission v Hungary EU:C:2019:432, pars 64-65; C-78/18 European Commission v Hungary ECLI:EU:C:2020:476 pars 101-104.

50

C-390/12 Robert Pfleger ECLI:EU:C:2014:281, par 36.

51

See, e.g., case C-483/12 Pelckmans Turnhout NV ECLI:EU:C:2014:304, par 25; case C-122/15 C ECLI:EU:C:2016:391, par 29 and the opinion of Avocate General Kokkot ECLI:EU:C:2016:65, par 66-67; case C-235/17 European Commission

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Concluding this part of the analysis, it might be said that any obligation to enforce EU law by a Member State could be a link enabling applicability of the Charter. This comprises situations where national legislation affects enforcement of an obligation coming from EU law (it either serves or jeopardises the enforcement of EU law), even if it is not aimed at its implementation. This may include: national procedural provisions established within the procedural autonomy of Member States but falling under the requirement of the effectiveness of EU law; national law falling within the scope of EU provisions lacking direct effect but enforcement of which might be put into question by this national law; and national provisions limiting the basic freedoms of the internal market. It follows then that the Charter may cover not only situations where a Member State acts under the principles of primacy and direct effect but also under the principle of effectiveness of EU law.52

3. The given case falls under EU law

For the Charter to be applicable it is not enough for a national provision to fall within the scope of EU law but this provision must also be applicable in the given case before the national judge.53_This

approach was confirmed by the judgment in the Iida case, which although it concerned national provisions directly implementing EU regulations it was treated as not falling under the Charter because the facts of this particular case remained outside the scope of EU law.54_{In the Mohamed Daouidi case}

CJEU stated that since the question of the application of EU law in this case had to be established by the referring court following a previous judgment of the CJEU, at that stage in the proceedings it was not determined that the situation of the applicant in the national proceedings came within the scope of EU law.55_{The CJEU did not find the Charter applicable in a case concerning court fees when, contrary}

to the DEB case mentioned above, he litigation before the national court did not concern a matter regulated by EU law.56_{Also when a case before a national court concerned the execution of a judgment}

ordering compensation by the State for the excessive length of legal proceedings referring to a bankruptcy, the CJEU decided that there was nothing indicating that the dispute before the national court related to the interpretation or application of a rule of EU law other than the Charter itself.57_{The Charter}

will not be applicable even if the domestic provisions applied by the national court form part of a regulation transposing an EU directive but these provisions do not implement a specific obligation with regard to the situation at issue in the proceeding before the national court.58

The above does not mean that the Charter does not apply in the cases of an “abstract review” of national provisions which implement the EU law if this abstract verification is necessary for the national court in order to issue a decision in a given case.59

4. The scope of EU law

As has already been pointed out with respect to situations of derogation, interpretation of the concept of implementation of EU law may also be problematic because of difficulties in defining the scope of EU law as such. This can be illustrated by different views of the scope of regulation of the EU Visa Code

52

See van Bockel, Wattel, supra note 14, p 878.

53

E.g. cases C-258/13 Sociedade Agrícola e Imobiliária da Quinta de S. Paio Lda ECLI:EU:C:2013:810, par 23; C-56/13

Érsekcsanádi Mezőgazdasági ECLI:EU:C:2014:352, par 54-57.

54

Case C-40/11 Y. Iida, par 80.

55

Case C-395/15 Mohamed Daouidi ECLI:EU:C:2016:917, par 60-68.

56

Case C-265/13 Emiliano Torralbo Marcos ECLI:EU:C:2014:187.

57

Case C-177/17 and C-178/17 Demarchi Gino Sas ECLI:EU:C:2017:656, par 28.

58

Case C-32/20 TJ ECLI:EU:C:2020:441, par 27

59

See also opinion of Advocate General Bobek in cases C-83/19, C-127/19 and C-195/19 Asociaţia ‘Forumul Judecătorilor

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presented by the Advocate General and the CJEU acting in the Grand Chamber. According to the Advocate General, when applying the Visa Code a Member State acts within the scope of EU law, but for the CJEU the national authorities were wrong to qualify the factual situation as being within the scope of the Visa Code and to decide on the request for a visa. In consequence, such a situation is outside of the scope of EU law and so it is not subject to the Charter.60

This was also the problem in many cases decided after Åkerberg Fransson. The CJEU has rejected application of the Charter in cases remaining clearly outside the scope of EU law, such as concerning immunity from a suit enjoyed by Germany in Italian courts in cases concerning compensation for its actions during WWII61_{and the pensions of former functionaries of Polish ancien régime security}

services.62_{However, there have also been less obvious cases, such as Banco Português de Negócios, in}

which the CJEU decided that national measures on salary reductions in a nationalised bank introduced in order to fulfil the obligations under the Stability and Growth Pact did not fall under EU law,63_{and in}

the Montull case, in which the CJEU held that since no provision of EU law precluded discrimination between adoptive and biological fathers as to the parental leave, the case remained outside the scope of EU law.64_{In the Dano case, the CJEU analysed first whether the Member State acted in compliance}

with an EU directive by excluding entitlement to certain social benefits and then declared that the Member States had competence to determine the conditions for granting these benefits. Therefore, when exercising this competence, they were not implementing EU law.65_{Similarly in DK case, the CJEU}

stated that the situation to which the question of the national court referred was not covered by a directive, therefore the Charter could not be applied in this situation.66

A new chapter in the problem of defining the scope of EU law concerns the question of whether and to what extent the independence and organisation of a national judiciary is subject to EU law. This new chapter was opened by the judgment of the CJEU in the Associação Sindical dos Juízes Portugueses case concerning the interpretation of Article 19(1) TEU in the context of the principle of judicial independence. The basic question coming out from the preliminary reference by the Portuguese Supremo Tribunal Administrativo was whether EU law (Article 19 TEU and Article 47 CFR) might apply to the principle of judicial independence of a national court, the Tribunal de Contas.67_Answering

that question, first, the CJEU indicated that Article 19(1) TEU related to “the fields covered by Union law,” irrespective of whether the Member State was implementing EU law within the meaning of Article 51(1) CFR. Second, the CJEU stated that to the extent that the Tribunal de Contas might have ruled on questions concerning the application or interpretation of EU law, the Member State had to ensure that that court met the requirements necessary for effective judicial protection in accordance with Article 19(1) TEU. In this respect, it was essential to guarantee independence of the national court as required in Article 47 CFR. Finally, the CJEU did not base its decision on the Charter but on interpretation of Article 19 TEU. Therefore, it treated Article 19 TEU as justification for the application of the Charter to establish the standard of judicial protection as required by this provision, but not as an argument that when Article 19 TEU can be applicable to national law, it constitutes the implementation of EU law in the meaning of Article 51(1) CFR

Deciding a case concerning an infringement procedure against Poland due to violations of the principle of judicial independence regarding the judges of the Supreme Court, the CJEU confirmed the

60

Case C-638/16 PPU X and X v État belge ECLI:EU:C:2017:173.

61

Case C-466/11 Gennaro Currà. ECLI:EU:C:2012:465.

62

Case C-28/14 Ryszard Pańczyk ECLI:EU:C:2014:2003.

63

Case C-128/12 BPN - Banco Português de Negócios SA ECLI:EU:C:2013:149.

64

Case C-5/12 Marc Betriu Montull ECLI:EU:C:2013:571, pars 67, 73.

65

Case C-333/13 Dano ECLI:EU:C:2014:2358, pars 88-92.

66

Case C-653/19PPU DK ECLI:EU:C:2019:1024, pars 40-42.

67

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reasoning applied in the Associação Sindical dos Juízes Portugueses case and explained that this judgment was based on Article 19(1) TEU because the national court in question could rule on questions concerning the application or interpretation of EU law.68_{This logic was also applied to several}

preliminary references addressed by Polish courts to the CJEU concerning reform of the national judiciary. The courts asked whether Article 19(1) TEU in connection with Article 47 CFR allowed changes to the retirement age of the judges of the Supreme Court and to the nomination process of the judges, together with new rules on disciplinary proceedings. The underlying argument in these references was that the courts of the Member State deciding cases with elements of EU law are European courts bound by Article 19(1) TEU.69_{Deciding on a few of these referrals, the CJEU did not rely on the}

Charter but confirmed once more that Article 19(1) TEU applied if the national court could rule on questions concerning the application or interpretation of EU law and therefore falling within the fields covered by EU law. Hence, application of Article 19(1) TEU requires verification of whether Member States provide remedies that are sufficient to ensure effective legal protection within the meaning of Article 47 CFR.70

Some conclusions may be drawn from this CJEU case law. First, national court cases concerning EU law fall under the implementation of EU law in the meaning of Article 51(1) CFR and consequently Article 47 CFR regulates the standard of these court proceedings (e.g. in the DEB, Stojanow and AK cases71_{). In such cases, analysis of national remedies on the basis of Article 47 CFR makes an analysis}

of Article 19(1) TEU redundant because it can only reinforce the conclusion already set out on the basis of the Charter.72_{Second, when national court cases do not concern EU law, a possible but unlikely}

impact of these cases on the effectiveness of EU law is not sufficient to fulfil the conditions of Article 51(1) CFR (as, e.g., in the Demarchi Gino case73_{). Nevertheless, Article 47 CFR may still be applicable}

in those cases which do not qualify as implementation of EU law but which fall within fields covered by EU law within the meaning of Article 19(1) TEU.Then, this provision is applied as a rule being a part of Article 19 TEU and serving its interpretation, as it defines the standard of effective legal protection which has to be ensured by the Member States in the fields covered by EU law.74

68

See Case C-619/18 European Commission v Poland ECLI:EU:C:2019:531, par 50 - 54.

69

As stated by Advocate General Bobek, any transversal structural changes to the national judiciary will by definition be applicable to any and all functions exercised by national judges, case C-556/17 Alekszij Torubarov v Bevándorlási és

Menekültügyi Hivatal ECLI:EU:C:2019:339, par 54.

70

Cases C-585/18, C-624/18 and C-625/18 AK and others ECLI:EU:C:2019:982, par 82-86; C-558/18 and C-563/18, Miasto

Łowicz and Prokurator Generalny, EU:C:2020:234, par 34.

71

Cases C-279/09 DEB ECLI:EU:C:2010:811; C-93/12 Velko Stoyanov ECLI:EU:C:2013:432; C-585/18, C-624/18 and C-625/18 AK and others par 78-81.

72

Case C-585/18, C-624/18 and C-625/18 AK and others par 168-169. The same logic seems to be behind the reasoning of the CJEU in cases C-354/20PPU and C-412/20PPU L and P, ECLI:EU:C:2020:1033, where it analysed only Article 47 CFR even if the national court referred also to Article 19 TUE; as the cases concerned European Arrest Warrant, it was oblivious that Article 47 was applicable.

73

Case C-177/17 and C-178/17 Demarchi Gino Sas ECLI:EU:C:2017:656. See also case C-256/19 S.A.D. Maler und

Anstreicher OG ECLI:EU:C:2020:523, par 33-34.

74

Case C-585/18, C-624/18 and C-625/18 AK and others par 168. See also opinion of Advocate General Hogan in case C-896/19 Repubblika v Il-Prim Ministru ECLI:EU:C:2020:1055, par 42-47.

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V. Application of the Charter and application of the constitutional standards of the

Member States

1. Competences of national judges deriving from the Charter

Defining the scope of application of the Charter is the first problem, and of course it is followed by others such as: how the Charter interacts with constitutional basic rights and the constitutional identity of the Member States; whether the Charter precludes application of the national standard of fundamental rights protection; which standard prevails in the case of conflict and who decides this; and finally whether the Charter is useful or needed by the courts of the Member States if they already have their established fundamental constitutional rights.

By making the fundamental rights recognised by the EU more visible and more convenient to use in practice, the Charter encouraged national judges to rely on EU fundamental rights. It can be stated with some simplification that just as the van Gend en Loos judgement gave national courts the power to review the compliance of national legislation with EU law, the Charter gave them the power to review the compliance of national legislation with fundamental rights. Of course, it was not the Charter itself but rather the doctrine of direct effect and primacy of EU law. The Charter, as part of EU law with the same legal value as the Treaties, acquires the same quality, meaning that the provisions in the Charter can have direct effect and supremacy over national law. In consequence, national courts examine the compliance of national law with the fundamental rights recognised in the EU system.

This competence was confirmed in the Åkerberg Fransson judgment, in which the CJEU precluded application of national procedural rules on reviewing the compliance of domestic law with fundamental rights. It held that Swedish law could not make application of the Charter conditional on whether incompatibility with fundamental rights was manifest, “since it withholds from the national court the power to assess fully, with, as the case may be, the cooperation of the Court of Justice of the European Union, whether that provision is compatible with the Charter.”75_{That was also directly confirmed in the}

A v B judgment concerning the Austrian legal system, in which the CJEU stated that the ordinary courts might not be under a duty to apply to the constitutional court for statutes to be annulled with erga omnes effect if that obligation prevented the courts from exercising their right to make a reference to the CJEU. It was, however, allowed if the court remained free to refer questions for preliminary rulings and to fulfil its obligations arising from the principles of primacy and direct effect of EU law.76_{This means that}

applying the Charter is the autonomous competence and duty of national courts, which are supported in this task by the CJEU through the preliminary rulings procedure.

This leads to the question of division of competence. As long as the EU had no single legal act regulating fundamental rights, national constitutional or supreme courts remained the courts of last instance in matters of fundamental rights (of course without prejudice to the role of the ECtHR77_{). Once}

such an act came into force, the problems with delimiting the jurisdictions of constitutional courts and the CJEU reappeared.78_{National courts examine the compliance of domestic law with the fundamental}

rights recognised in the EU system, even if under national law they do not have the competence to

75

76

Case C-112/13 A v B ECLI:EU:C:2014:2195.

77

Judicial dialogue between national courts and the ECtHR is significantly enhanced by Protocol 16 to the Convention, which gives the highest courts and tribunals of the Member States of the Convention the possibility to ask the ECtHR for advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention, which entered into force on 1 August 2018. The ECtHR has already delivered its first opinions.

78

As reflected, e.g., in verdicts of constitutional courts using the concept of ultra vires jurisdiction of the CJEU in the scope of the fundamental rights – e.g. the decisions of Bundesverfassungsgericht of 6 July 2010, 2 BvR 2661/06, Honeywell; of 5 May 2020, 2 BvR 859/15, 2 BvR 1651/15, 2 BvR 2006/15, 2 BvR 980/16; the judgment of the Czech Constitutional Court of 15 February 2012 (TZ 8/12), Slovak pensions.

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review the compliance of national provisions with constitutional rights (which is often reserved to the constitutional or highest courts). Nevertheless, EU law gives national courts the competence, right and obligation to apply the Charter autonomously and independently of national procedures. It may be said that application of the Charter bestows on national courts the role of constitutional courts – not only examining the compliance of national law with EU law, but also its compliance with the fundamental rights recognised in the EU system. In some cases, reference to the Charter and the preliminary ruling procedure may also be seen as allowing the established national interpretation of the fundamental rights to be changed when it is considered by the domestic courts to be unjustified, outdated or not complying fully with international standards.79

2. Diverging EU and national standards of protection of fundamental rights

The most problematic situation arises when the Charter is applicable and the standard of protection of fundamental rights it provides is different to that provided for in national law. If this standard is higher than that offered by national law, there is no doubt that it prevails. If the standard is seen by a national court as lower than that offered by the national law, on the basis of Article 53 CFR, Member States can apply the national standard. As we already know from the case law, there might, however, be situations where application of national standards leads to infringement of EU law. Would it then be allowed?

In the Åkerberg Fransson judgment, the CJEU finding the Charter applicable, held at the same time that national courts were free to apply constitutional standards in a situation where action by the Member State was not entirely determined by EU law as long as the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law were not thereby compromised.80_{Moreover, the}

CJEU authorised the national court to assess the compliance of the regulations in question with the constitutional standards.81_{In the Melloni judgment, the CJEU interpreting Article 53 CFR held that}

“where an EU legal act calls for national implementing measures” national courts remained free to apply national standards of protection of fundamental rights, provided that the level of protection guaranteed by the Charter as interpreted by the CJEU and the primacy, unity and effectiveness of EU law were not thereby compromised.82_{Finally, it held that a national constitutional order could not be allowed to}

undermine the effectiveness of EU law and to disapply EU harmonised legal rules which were in compliance with the Charter.

The CJEU in both the Åkerberg Fransson and Melloni judgments used the same formula but for different reasons. In Åkerberg Fransson it was used to justify the application of the national standard (possibly higher than the EU); in Melloni it was used to exclude such application as interfering with the primacy of EU law. This distinction is justified in view of the differences between these two cases: the first one concerned the indirect implementation of EU law which did not provide a common standard of protection of the fundamental right in question (ne bis in idem in the case of tax infractions83_{); the second}

one concerned direct implementation of EU law which concretised and defined the level of protection

79

It seems that the Charter was viewed as such by the Social Court of Barcelona in case C-395/15 Daouidi, where the court underlined that it is clear from the case law of the supreme court of Spain that dismissal on grounds of illness or of temporary disability resulting from an accident at work is not considered to be discriminatory, with the result that that dismissal cannot be considered ‘void,’ but asked the CJEU whether such a dismissal is contrary to Articles 21(1), 30, 31, 34(1) and 35 of the Charter, par 32-33.

80

81

Ibidem, par 36.

82

Case C-399/11 Stefano Melloni, 26 February 2013 ECLI:EU:C:2013:107, par 60, 58. See also Nik de Boer, ‘Case C-399/11, Stefano Melloni v Ministerio Fiscal, Judgment of the Court (Grand Chamber) of 26 February 2013‘ 50 CMLRev (2013) 1083–1103; Marek Safjan, Dominik Düsterhaus, Antione Guérin, ‘La Charte des droits fondamentaux de l’Union européenne et les ordres juridiques nationaux, de la mise en œuvre à la mise en balance‘ RTD Eur. (2016) p 219.

83